Velez v. Montalvo-Velez

• Decision Date: 10 August 2018
• Docket Number: Case No. 2D16-4794
• Citation: 253 So.3d 117
• Parties: Jimmy VELEZ, Appellant, v. Elizabeth MONTALVO-VELEZ, Appellee.
• Court: Florida District Court of Appeals

253 So.3d 117

Jimmy VELEZ, Appellant,

v.Elizabeth MONTALVO-VELEZ, Appellee.

Case No. 2D16-4794

District Court of Appeal of Florida, Second District.

Opinion filed August 10, 2018

Brian J. Kruger and Luis E. Insignares of Luis E. Insignares, P.A., Fort Myers, for Appellant.

No appearance for Appellee.

BLACK, Judge.

Jimmy Velez(the former husband) challenges the final judgment of dissolution of marriage, arguing that the award of permanent alimony to Elizabeth Montalvo-Velez(the former wife) is not supported by sufficient findings or evidence.¹Because the trial court failed to make sufficient factual findings to allow for meaningful review and otherwise failed to make the express finding mandated by section 61.08(8), Florida Statutes(2014), we reverse the portion of the final judgment related to alimony.

The trial was held on August 18, 2016.The former husband testified that he earns, on average, $1300 per month.This is supported by his amended financial affidavit, which indicates that the former husband's gross income is $1300 per month and that his net income is $1255 per month.Yet the former husband also testified that he has been paid exclusively in cash since May 2015, one month before the former wife filed for divorce, and that he has no idea how much he has earned since then.The former husband does not have a bank account, and he does not report his income to the Internal Revenue Service.According to his amended financial affidavit, the former husband's monthly expenses exceed his monthly net income by almost $500.The former husband was incarcerated in February 2016 for failing to pay court-ordered temporary alimony to the former wife but has been making the payments since then.The former husband was questioned about where the "extra money" was coming from since he has been paying both temporary alimony to the former wife and his expenses.He responded as follows: "I have to work and do additional property inspections to make up the difference or get—be delayed on my bills.Like now, my car payment is delayed, my rent hasn't been paid, my [car] insurance is due, hasn't been paid either."The former husband later admitted that he was not behind on rent and was only one month behind on his car payment.The document he presented to the court in support of his assertion that he was one month behind on his car payment did not indicate how much was owed or how far behind he was.Moreover, the car insurance statement presented to the court demonstrated only that a payment was due on August 6, 2016.The former wife's counsel argued in closing that the former husband's income is more than the former husband claims it to be and that he has "tried to find it by numerous ways, and he's done a good job of covering up, good job of hiding it through his girlfriend."The court made the following findings in the final judgment regarding the former husband's income and ability to pay alimony:

The [former][w]ife proved she had a need for alimony, and the [former][h]usband showed that he had the ability to pay alimony.The [former] husband testified that he solely supported the [former] wife and the minor children during the marriage.He further testified that he wanted the [former] wife at home to take care of the children.The [former] husband was less than truthful when it came to his income....On December 14th, 2015the court imputed income to the [former] husband [in the amount] of $900.00 a week based on his testimony, evidence presented.For a period of time the [former] husband wrote checks from his company to his adult children.He then had the adult children cash the checks and return the cash to him.By his own admission he did this to avoid child support payment[s] in the State of New York.The [former] husband's testimony waivered [sic] as to his income.He stated he may make $3,000 a month even though prior tax returns showed him making in excess of $50,000.00 annually....To obtain the standard of living that the [former][w]ife maintained during the marriage she would need $370.00 per week [in] alimony.This is the previous amount this court ordered the [former] husband to pay.The [former] husband was once incarcerated for non-payment on February 17, 2016.His purge amount was $1460, cash.He was able to obtain the cash bond within 24 hours and posted on February 18, 2016.Since that date, the [former] husband has faithfully paid the $370.00 weekly with no issues.The court grants the [former] wife alimony in the amount of $370.00 per week.

In order to impute income to an unemployed or underemployed spouse, the court must determine based on competent substantial evidence whether that spouse came to be in such a state voluntarily and whether he or she has been diligent in finding replacement income.SeeLafferty v. Lafferty, 134 So.3d 1142, 1144(Fla. 2d DCA2014)(first citing Valentine v. Van Sickle, 42 So.3d 267, 274(Fla. 2d DCA2010); and then citing Schlagel v. Schlagel, 973 So.2d 672, 675(Fla. 2d DCA2008));see alsoSoria v. Soria, 237 So.3d 454, 461(Fla. 2d DCA2018)("A court may impute income if a party is earning less than he could, based on a showing that he has the capability of earning more by the use of his best efforts."(quotingAlpert v. Alpert, 886 So.2d 999, 1001(Fla. 2d DCA2004) ) ).In addition to finding a basis for imputation of income, the court must also indicate the amount imputed.SeeNieboer v. Nieboer, 816 So.2d 1259, 1260-61(Fla. 2d DCA2002).However, "[w]here there is insufficient evidence to determine the amount to impute, there is a presumption based on the spouse's historical earnings that arises, though it can be rebutted by the spouse to whom income is imputed."Lafferty, 134 So.3d at 1145.

Prior to May 2015, the former husband had a documented work history including pay stubs and tax records and consistently made about $50,000 per year.Given the court's findings that the former husband wavered and was "less than truthful" about his income and the fact that his work history is no longer documented, imputing income based on his historic income may be appropriate.Cf.Ghay v. Ghay, 954 So.2d 1186, 1190(Fla. 2d DCA2007)(stating that it may be appropriate for the trial court on remand to impute income to the husband in calculating the temporary support award since he"attempted to divest himself of any income").However, though the court indicated that it imputed income to the former husband in awarding temporary alimony to the former wife, it did not indicate that it was in fact imputing income to the former husband in awarding permanent alimony.SeeGreenberg v. Greenberg, 823 So.2d 176, 177(Fla. 4th DCA2002)("The factual findings in the temporary order on alimony ... do not restrict the trial court from determining alimony ... in accordance with the evidence presented at the final hearing and the applicable law.").It is possible, as the former husband contends, that the court awarded permanent alimony based on imputed income.It is also possible, given the testimony and evidence presented during trial that the former husband has been able to stay current—for the most part—on his expenses and temporary alimony, that the court based the award of permanent alimony on the former husband's actual income.But just as the court failed to indicate whether it was imputing income to the former husband in awarding permanent alimony it also failed to make a finding regarding actual net income.SeeMcCants v. McCants, 984 So.2d 678, 682(Fla. 2d DCA2008)("It is well-established that the trial court must determine each spouse's [net] income for purposes of alimony ....").Our review is thus hampered, and we must reverse the alimony award and remand for the court to...